5 Common Will Drafting Mistakes

Write your will right and it will do exactly what you want and need it to do when you die. Your will is your roadmap to your loved ones and a properly written will ensures that your death doesn’t create a legal or administrative burden on your family.

Write it wrong and your family may fight over its meaning; mistakes open the door for the contents of your will to be disputed and your intentions to be debated. In worst case scenarios, mistakes can invalidate the entire document, meaning your wishes could be completely ignored.

The language you use and how you use it is the key to a properly drafted will. Omitting a word here, forgetting a detail there could turn your intentions into an entirely different meaning. And, making the wrong choice or an error could have disastrous consequences.

Here are the five most common mistakes we see in improperly drafted wills.

1) Trusts improperly set up. If you’re leaving a gift to a beneficiary but want it to be left in trust for a specific reason, your will MUST say so. For example, if you want your beneficiary to receive your gift after they reach a certain age, a trust needs to be established in your will. Otherwise the entire gift may be handed over when your estate is administered.

2) Failing to make provisions for if a gift fails. The most common reason for a gift to fail is if a beneficiary predeceases you. Your will needs to clearly outline what you would like to happen by including a gift over clause. For example, naming a beneficiary’s children to receive the gift should the beneficiary die before you. Without a provision, failed gifts may fall back into your estate to the benefit of your other beneficiaries.

3) Choosing the wrong executor (or trustee).Both are big jobs and you need to think long and hard about who to choose to do the jobs. Picking the wrong person to administer your estate can be problematic and can turn the settling of your estate into chaos. Who you choose to give this responsibility to needs to know what they’re getting into.

4) Assuming it is up-to-date. There are a lot of reasons why you need to update your will and there are some life events that will completely void your existing will (i.e. a second marriage). Having an out-of-date will is as good as not having a will in the first place.

5) Incorrectly signed and witnessed. This simple mistake will invalidate your will, regardless of how well it is otherwise written. Having your will invalidated is as good as not having written one in the first place and means you die intestate.

The content of this article is intended to provide a general guide to the subject matter. It is not intended to replace actual legal advice. Specialist advice should be sought about your specific circumstances.

Lisa Laredo is a Toronto-based wills & estates, real estate, and commercial lawyer. At Laredo Law, we have the experience and expertise to create the legal structures that will serve your business now and into the future.